Fundamental Rights

PART III of the Indian Constitution – FUNDAMENTAL RIGHTS

What are Fundamental Rights?

Fundamental Rights are those Rights which are mentioned under Part III of the Indian Constitution.
There are certain Rights which are mentioned in the Constitution, but not under Fundamental Rights. Such Rights are called Constitutional Rights. (E.g. Right to Vote)

There are certain Rights which are available to citizens through laws passed by Legislatures (Centre or State). Such Rights are called Statutory Rights. (E.g. Right to Information)

Nature of Fundamental Rights

Most of the Rights are Negative Obligations on the State (E.g. Article 14), with certain exceptions (E.g. Article 21A). Negative Obligations means that the State cannot do something that hurts or curtails people’s rights.
Majority of Rights mentioned in Part III are enjoyed by citizens against the State.
These Rights are Justiciable.
Fundamental Rights are not absolute i.e. certain reasonable restrictions can be imposed upon them.
Fundamental Rights can be suspended during emergency.
Fundamental Rights of people occupying sensitive positions (Armed Forces, Intelligence Agencies etc.) can be restricted or even denied by Parliament by law.
Most of the Right are self executory i.e. the parliament need not make laws to implement these Rights. There are certain exceptions e.g. For Right to Education under Article 21A, a law was required by the parliament.
Some of these Rights are available to aliens (Foreigners).

Article 12 – Definition of State

It states that, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

NOTE: Government and Parliament of India include Union Government & Union Parliament. Government and the Legislature include all State Government & State Legislature of each of the States.
All local or other authorities include all Institutions of local self-Government (E.g. municipality, Panchayats etc.).

Article 13 - Laws inconsistent with or in derogation of the fundamental rights

13 (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
NOTE: Parliament cannot make laws which violate any part of the Constitution. With respect to Part III, Judiciary will review those laws which are made by the Parliament and violate the provisions of Part III. Judicial Review of Part III of the Constitution is not explicitly mentioned. It is implicitly conveyed through Article 13 (1).

13 (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Amendment of Fundamental Rights

Article 13 (2) states that the state shall not make any laws which take away Fundamental Rights of a citizen. A question arises as to whether the term ‘law’ in Article 13 (2) includes just ordinary laws or Constitutional Amendment Acts also. If Constitutional Amendment Act is not covered under law then the Parliament can amend the Fundamental rights by Amending the Constitution itself.

The Supreme Court Shankari Prasad vs. Union of India (1951) case held that Constitutional Amendment Act is not a law and thus Parliament can amend any Fundamental Right by using Constitutional Legislative Power. It gave a similar verdict in Sajjan Singh vs. State of Rajasthan Case (1965) case.

However in Golaknath vs. State of Punjab (1967) case the Supreme Court held that Fundamental Rights had been given transcendental position by the Constitution and even Parliament cannot amend Fundamental Rights.

The 24th Constitutional Amendment Act amended Article 13 and 368 which made it clear that Parliament has the power to amend Fundamental Rights through Constitutional Amendment. This was challenged in the Supreme Court in Keshavananda Bharati vs. State of Kerala (1979) case. The Supreme Court upheld the validity of 24th Amendment Act. However, the Supreme Court held that the Parliament’s amendment power is limited and is subject to “Basic Structure” of the Constitution. The Supreme Court has not explicitly defined the term “Basic Structure”. However, in various judgments, the Supreme Court has held that the following concepts form a part of Basic Structure

Supremacy of the Constitution
Secular character of the Constitution
Federalism
Separation of Powers
Power of Judicial Review
The mandate to build a welfare state

Classification of Fundamental Rights

Right to Equality (Article 14 to 18)
Right to Freedom (Article 19 to 22)
Right against Exploitation (Article 23 to 24)
Right to Freedom of Religion (Article 25 to 28)
Cultural and Educational Right (Article 29 to 30)
Right to Constitutional Remedies

RIGHT TO EQUALITY

Article 14 – Equality before Law

It states that - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
NOTE: Equality before the law means that every person (including aliens) shall be treated equally by the law.

There are certain exceptions (E.g. Article 361, Diplomatic Immunity).

Equal Protection of law means law must operate equally among equals. Rolling out special schemes only for BPL category does not amount to violation of Article 14 as it attempts to bring BPL category towards non BPL category (reduce inequality).
To operationalize Equal protection of Laws, categories formed should be homogenous and the categories so formed should have a reasonable correlation with the objective that has to be achieved.

Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

NOTE: This right is available only to citizens and not aliens. The state cannot discriminate only on the above mentioned grounds but can discriminate on grounds other than these. (E.g. Marks in Entrance Exams)

15. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

NOTE: The rights under 15 (2) are not only available against a state but also against other citizens as shops, restaurants etc. can be owned by state or can be a private property.

15. (3) Nothing in this article shall prevent the State from making any special provision for women and children.

15. (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

NOTE: Article 15 (1) states that no citizen shall be discriminated on the grounds of caste, sex, religion. But there are special considerations for SC/ST, OBC, Women and Children. Exceptions for these categories are mentioned in Clause 2 and 3 of Article 15.

15.(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

NOTE: In order to serve the educationally and socially backward classes, the state asked the private education institutions also to reserve seats for the backward classes. Private institutions objected to it, stating it would amount to violation of right under Article 19 (1) g. The Parliament, by amending the constitution in 2005, added Clause 15 (5). According to this, it is mandatory to reserve seats for backward classes also even in private institutions whether aided or unaided, by law. The only exception is educational institutions run by minority communities. A law was enacted in this effect called Central Educational Institutions Reservation in Admission Act 2006. This Act was challenged in the Supreme Court, but the Supreme Court upheld the validity of this law.

Vishaka Case

A was a PIL filed in Supreme Court by Vishaka and four other women's organizations in Rajasthan against the State of Rajasthan and the Union of India. This case in reference to the Bhanwari Devi’s alleged Gang Rape in 1992 in Rajasthan. Bhanwari Devi's legal battle culminated when the Supreme Court of India in a PIL, defined sexual harassment at workplace, preventive measures and redress mechanism. Vishaka Guidelines against Sexual Harassment at Workplace Guidelines and norms were laid down by the Hon’ble Supreme Court in Vishaka and Others vs. State of Rajasthan and Others

Article 16 - Our Constitution guarantees equality of opportunity in matters relating to employment or appointment to public services to all citizens. There shall be no discrimination on the basis of religion, race, caste, sex, place of birth or residence in matters relating to employment in public services. Merit will be the basis of employment. However, certain limitations have been provided to the enjoyment of these rights.

Article 17 - Abolition of Untouchability

It states that - “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

The Constitution abolishes untouchability and its practice in any form is forbidden. The following actions are considered as offences when committed on the grounds of untouchability

Refusing admission to any person to the public institutions;
Preventing any person from worshipping in place of public worship;
Preaching untouchability directly or indirectly.

Punishments for violations include minimum jail sentence of 6 months and/or fine, or the person can be permanently debarred from contesting any elections in the country. According to the article, punishment has to be in accordance with law. Parliament, for this purpose, enacted ‘The Untouchability offenses Act, 1955’. This was renamed as ‘The Civil Rights Protection Act’ in 1976. If a case of untouchability is brought before the court, the court will act on the assumption of guilt (unlike other cases where assumption is innocent until proven guilty).

Article 18 - Abolition of titles
18 (1) No title, not being a military or academic distinction, shall be conferred by the State.

18 (2) No citizen of India shall accept any title from any foreign State
18 (3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
18 (4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

All titles national or foreign which create artificial distinctions in social status amongst the people have been abolished.
This provision has been included in the Constitution to do away with the titles like ‘Rai Sahib’, ‘Rai

Bahadur’ have been conferred by the British on a few Indians as a reward for their effective co-operation to the colonial regime. The practice of conferring titles like this is against the doctrine of equality before law. To recognise the meritorious service rendered by individual citizens to the country or mankind, the President of India can confer civil and military awards on those individuals for their services and achievements such as; Bharat Ratna, Padma Vibhushan, Padma Sri, Param Veer Chakra, Veer Chakra etc., but these cannot be used on ‘titles’.

Right To Freedom (Article 19 - 22)

Article 19 -The Constitution guarantees the following six Fundamental Freedoms at present:

Freedom of speech and expression
Freedom to assemble peacefully without arms
Freedom to form associations or unions
Freedom to move freely throughout the territory of India
Freedom to reside and settle in any part of the territory of India
Freedom to practise any profession or to carry on any occupation, trade or business

Freedom of speech and expression is an important freedom. This freedom ensures free and frank speech, discussion and exchange of opinions. It includes the freedom of the press. However these freedoms like freedom of speech and expression are not absolute. The state is empowered to impose reasonable restrictions on the exercise of this right in the interest of security of the state, public order, morality etc.

Concept of Inferred Rights: Article 19 (1) (a) gives the right to Freedom of speech and expression. This also means that a person can stay silent if he wishes to. This can be inferred from Article 19 (1) (a). Hence, there are rights in the constitution which can be inferred from the given rights. This is Concept of Inferred Rights.

Explaining the scope of freedom of speech and expression Supreme Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audio visual instrumentalities. It therefore includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution.

Freedom of Press: The fundamental right of the freedom of press implicit in the right the freedom of speech and expression is essential for the political liberty and proper functioning of democracy. The Indian Press Commission says that "Democracy can thrive not only under the vigilant eye of legislature, but also under the care and guidance of public opinion and the press is par excellence, the vehicle through which opinion can become articulate." Unlike the American Constitution, Art. 19(1) (a) of the Indian Constitution does not expressly mention the liberty of the press but it has been held that liberty of the press is included in the freedom of speech and expression. The editor of a press for the manager is merely exercising the right of the expression, and therefore, no special mention is necessary of the freedom of the press. Freedom of press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of press and invalidate all laws or administrative actions, which interfere with it contrary to the constitutional mandate.

Grounds of Restrictions: Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed Security of State:

Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.

Friendly relations with foreign states: This ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardise the maintenance of good relations between India, and that state. No similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government.

Public Order: This ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression of wide connotation and signifies "that state of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established."

Freedom of assembly is not absolute but restricted. The assembly must be must be non-violent and must not cause any breach of public peace. If the assembly is riotous then it is not protected under Article 19 (1) (b) and reasonable restrictions may be imposed.

Freedom to form Associations includes association of political, social or cultural. Further, it also gives the right to join or not join associations or right to continue or not to continue with any association. It also gives the right to form trade unions. Article 33 of the constitution empowers the to pass a law restricting the right to form political association to members of armed forces, persons employed in any bureau or other organizations established by the state for the purpose of intelligence or counter intelligence, persons employed in or in connection with the telecommunications system.

Freedom of movement guarantees to the citizens the right to move freely throughout the territory of India. But this can restricted on the grounds of Security, Public order or for protecting the interests of the scheduled tribes.

Freedom of Residence provides the right to reside or settle down throughout the territory of India. This right is subject to certain reasonable restriction in areas like scheduled areas or border areas.

Freedom of Trade and Occupation guarantees all citizens right to choose any profession, occupation, trade or business. This right can be restricted by the state under Clause 6 which includes

Imposing reasonable restrictions in the interest of general public
Prescribing professional or technical qualifications necessary for carrying on any profession, trade or business to the exclusion of private citizens, wholly or partially.

These freedoms can be suspended during the State of National Emergency. As soon as the State of National Emergency is declared under Article 352, the above- mentioned freedoms except the right to life and liberty, automatically remain suspended as long as the State of National Emergency continues. All these freedoms get restored as soon as the proclamation of National Emergency is lifted.

Article 20 – Protection in respect of conviction for offences

20 (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

20 (2) No person shall be prosecuted and punished for the same offence more than once

This Constitutional provision assures protection against arbitrary arrest and excessive punishment to any person who is alleged to have committed an offence. No person shall be punished except for the violation of law which is in force when the crime was committed. An accused cannot be compelled to be a witness against himself/herself. No person shall be punished for the same offence more than once. Also, no criminal law can be invoked retrospectively.

Article 21 – Protection of life and Personal liberty
21. No person shall be deprived of his life or personal liberty except according to procedure established by law.

21A. Right to education—The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

The Constitution lays down that no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. It guarantees that life or personal liberty shall not be taken away without the sanction of law. It ensures that no person can be punished or imprisoned merely at the whims of some authority. He/she may be punished only for the violation of the law.

Right to Education was introduced by the 86th Amendment Act, 2002. It was earlier under Article 45 of the Constitution as a part of Directive Principles of State Policy. Right to Education Act, a law required to execute this right, was passed by the Parliament in 2009.According to the law, 25% of the seats have to be reserved for economically backward section even in private institutions, only exception being minority institutions.

Article 22 - Prevention against Arbitrary Arrest and Detention

Our Constitution guarantees certain rights to the arrested person. As per the provision, no person can be arrested and/or be detained in custody without being informed of the grounds for detention. He /she has the right to consult and be defended by a lawyer of his/her choice. The accused has to be produced before the nearest magistrate within a period of twenty-four hours of arrest. These safeguards however are not available to foreigners as well as to those citizens detained under Preventive Detention Act.

What is Preventive Detention?

When the State feels that a person is likely to commit crime or is a threat to the security of the State, he/she may be detained without trial for a limited period. However, no person can be kept under detention for more than three months until permitted by an Advisory Board consisting of persons who are qualified to be appointed as judges of the High Courts. Such a board is presided over by a sitting judge of a High Court.

Article 23 - Prohibition of traffic in human beings and forced labour

Traffic in human beings and beggars and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law
Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them

Article 24 - Prohibition of employment of children in factories

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause ( 7 ) or such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause ( 7 )

Right to Freedom of Religion (Article 25 – 28)

Article 25 - Freedom of conscience and free profession, practice and propagation of religion
25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
25. (2) nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

This right guarantee to every person the freedom of conscience and right to profess, practise and propagate religion. This right is however, subjected to public order, morality and health and to the other provisions of Part III of constitution. Right to propagate does not include right to convert. This means no one has the right to convert another person to his own religion by force, fraud or by offering incentives.

The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. In sub- clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

In the West, the state has nothing to do with religion.
In India, the state will remain neutral in the matters of religion.
This means, if a state seeks to promote religion, it has to promote all religions equally.
Secularism is seen as a means to promote communal harmony.

Why aren’t we able to achieve a secular society?

Considering Hindu-Muslim communalism, the wounds of partition have not healed so far.
Imbalances in development in the Hindu and Muslim community.
These imbalances were brought out by Sachar Committee Report (2006).
Majority of communities have not been magnanimous enough to accommodate the diversity of this country.
Absence of Uniform Civil code.
There is no effective framework, legal or institutional, to check communalism and promote National Unity.

Article 26 - Freedom to manage religious affairs

26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

a) To establish and maintain institutions for religious and charitable purposes;

b) To manage its own affairs in matters of religion;

c) To own and acquire movable and immovable property;

d) To administer such property in accordance with law.

This article permits every religious group, the right to manage its own affairs in matters of religion. Every religious sect has the right to establish and maintain institutions for religious and charitable purposes. Each religious group is also free to purchase and manage its movable and immovable property in accordance with law, for the propagation of its religion.

Article 27 - Freedom as to payment of taxes for promotion of any particular religion
27. No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

According to this article, the state cannot levy or collect any tax, the proceeds of which are to be used exclusively for the promotion of a particular religion. E.g. Jizyah, tax levied during medieval times imposed on non-Muslims and the proceeds of the tax were reserved for the promotion of Islamic religion. The government can levy fee for maintenance of religious shrines and this does not amount to violation of Article 27.

Article 28 - Freedom as to attendance at religious instruction or religious worship in certain educational institutions
28. (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

28. (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
28. (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

According to this article, no religious education can be imparted in any educational institution which is wholly maintained out of the state funds. This restriction does not apply to those educational institutions which are not wholly maintained out of State funds. But, even in those institutions, no child can be compelled to receive religious instructions against his /her wishes.

If religious denominations are set up under religious denominations or charitable trusts, religious education can be provided at such institutions and students can be compelled to attend.

Cultural and Educational Rights (Article 29 – 30)

Also referred to as Rights of Minorities.
Types of minorities identified under the Indian Constitution are primarily Linguistic and Religious.

Article 29 - Protection of interests of minorities
29. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

29. (2) 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, language or any of them.

Article 30 - Right of minorities to establish and administer educational institutions
30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
IA. In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
30. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

Cultural and Educational Rights provide necessary guarantees to preserve maintain and promote their culture and language. The Constitution allows minorities to establish and maintains educational institutions of their own. It also provides that the state shall not discriminate against any educational institution while granting financial aid on the grounds that it is being run by a minority community. These rights ensure that minorities will be given assistance by the state in the preservation of their language and culture. The Ideal before the state is to preserve and propagate the composite culture of the country.

Right to Property

In the original Constitution, all citizens had a threefold right to property.
Article 19 (1) (f) – repealed in 1978.
Article 31 (1) – was removed from Fundamental Rights and placed under Article 300A in 1978.
Article 31 (2) – repealed in 1978.
By the 4th Amendment Act, 1955, Article 31 (2) was amended. It added that if a citizen is not satisfied with the compensation received, it cannot be challenged in the court of law.
25th Amendment Act, 1971 again amended Article 31 (2). In this amendment the word ‘compensation’ from the article was replaced with ‘amount’.
By the 1st Amendment Act, 1951, Article 31A and 31B was added. These were exceptions to Right to Property.
In 2007, SC in its verdict held that even Schedule nine cannot provide immunity to those laws which are violating that part of Fundamental Rights, which according to apex court, are a component of basic structure.
Article 31C was introduced by 25th Amendment Act, 1971. This is also an exception to Right to property.
42nd Amendment Act, 1976 expanded the scope of Article 31C. Accordingly, if a law is made to give effect to any Directive Principle and if it violates Article 14 and 19, it shall not be an invalid law.
In the case of Minerva mills Vs. Union of India, 1980, this expansion beyond 39 (B) and (C) was considered unconstitutional and struck down.
Article 31D was added by the 42nd Amendment Act, 1976. According to this, if any law is made in the context of checking anti – national activities, even if it violates Article 14 and 19, it shall be a valid law.
Article 31D was removed from the constitution by the 43rd Amendment Act, 1977.
Right to property is, at present, a Constitutional Right under Article 300A.

Right to Constitutional Remedies (Article 32)

Part III of the Constitution provides for legal remedies for the protection of these rights against their violation by the State or other institutions/individuals. It entitles the citizens of India to move the Supreme Court or High Courts for the enforcement of these rights. The State is forbidden from making any law that may be in conflict with the Fundamentals Rights.

The Constitution empowers the Supreme Court and High Courts to issue orders or writs. It broadly provides for five kinds of “prerogative” writs, namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition.

The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself.
The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free.
The writ of certiorari is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgment of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld.
The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties.
The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires ‘by what authority’ the person supports his or her claim.
Supreme Courts can issue writs only for the restoration and enforcement of Fundamental Rights whereas High Courts can issue writs for Fundamental Rights and any other issues also.
Supreme Court has writ jurisdiction across the territory of India whereas jurisdiction of High Courts are restricted to the particular state.

Writ Petition

A writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower court’s decision. Under the Indian legal system, jurisdiction to issue ‘prerogative writs’ is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India.

Suspension of Fundamental Rights

During National Emergency under Article 352
President can proclaim a state of emergency in the threat of war, external aggression or armed rebellion.
Under Article 358, if National Emergency is imposed on grounds of war or external aggression, six rights under Article 19 stand automatically suspended.
Under Article 359, other rights can also be suspended but a separate notification has to be issued
by the President.
Article 20 and 21 can never be suspended.
Constitutional emergency and financial emergency have no impact on Fundamental Rights.