FUNDAMENTAL DUTIES

Fundamental Duties of citizens serve a useful purpose. In particular, no democratic polity can ever succeed where the citizens
are not willing to be active participants in the process of governance by assuming responsibilities and discharging citizenship
duties and coming forward to give their best to the country. Some of the fundamental duties enshrined in article 51A have been
incorporated in separate laws. The following are the Fundamental Duties prescribed by the Constitution to its every citizen:

To abide by the Constitution and respect its ideals and institutions, the National Flag and the National
(a)
Anthem.
(b) To cherish and follow the noble ideals which inspired our national struggle for freedom.
(c) To uphold and protect the sovereignty, unity and integrity of India.
(d) To defend the country and render national service when called upon to do so.
To promote harmony and the spirit of common brotherhood amongst all the people of India transcending
(e) religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of
women.
(f) To value and preserve the rich heritage of our composite culture.
To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have
(g)
compassion for living creatures.
(h) To develop the scientific temper, humanism and the spirit of inquiry and reform.
(i) To safeguard public property and to abjure violence.
To strive towards excellence in all spheres of individual and collective activity so that the nation constantly
(j)
rises to higher levels of endeavor and achievement.

WRITS
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. The Supreme Court, the
highest in the country, may issue writs under Article 32 of the Constitution, while High Courts, the superior courts of the States,
may issue writs under Articles 226 and 227. 'Writ' is eminently designed by the makers of the Constitution, and in the same way
it is developed very widely and efficiently by the courts in India. The Constitution broadly provides for five kinds of
"prerogative" writs, namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition. Basic details of which are as
follows:

 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 judgement 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.

A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes mandate, is the name of one of the
prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to
perform mandatory or purely ministerial duties correctly". [1]

Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, subordinate court,
corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or
refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty. [2] It
cannot be issued to compel an authority to do something against statutory provision.

Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal
rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a
grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who
has a legal duty to do something and abstains from doing it.

Legal requirements

The applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the
respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities: [3] It must be a
duty of public nature and the duty must be imperative and should not be discretionary.

Normally, a writ of mandamus does not issue to, or an order in the nature of mandamus is not made against, the private
individual. It is not necessary that the person or the authority on whom the statutory duty is imposed be a public official or an
official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute
by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by
statutes. A mandamus would be equally applicable for a company constituted by a statute for the purposes of fulfilling public
responsibilities. The court to which the application for the issue of mandamus is made will not constitute itself a court of appeal
from the decision of the administrative authority and will not examine the correctness or otherwise of a decision on merits. [4]
The exercise of administrative discretion is not interfered upon by the court, but it will do so if there has been an illegal exercise
of the discretion.

There is an illegal exercise of discretion where:

 1. The order is made without, or in excess of, jurisdiction
2. The order is made in bad faith, or
3. The authority is influenced by extraneous consideration.

Purpose

The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal
remedy for enforcing that right. It also lies in cases where there is an alternative remedy but the mode of redress is less
convenient, less beneficial or less effectual.[citation needed] Generally, it is not available in anticipation of any injury except when the
petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional
order is made. The grant of mandamus is therefore an equitable remedy; a matter for the discretion of the court, the exercise
of which is governed by well-settled principles. [5]

Mandamus, being a discretionary remedy, the application for that must be made in good faith and not for indirect purposes.
Acquiescence cannot, however, bar the issue of mandamus. The petitioner must, of course, satisfy the Court that he has the
legal right to the performance of the legal duty as distinct from mere discretion of authority. [6] A mandamus is normally issued
when an officer or an authority by compulsion of statute is required to perform a duty and which despite demand in writing has
not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.

Types

There are three kinds of mandamus:

1. Alternative Mandamus: A mandamus issued upon the first application for relief, commanding the defendant either to
perform the act demanded or to appear before the court at a specified time to show cause for not performing it.
2. Peremptory Mandamus : An absolute and unqualified command to the defendant to do the act in question. It is
issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus. [7][8]
3. Continuing Mandamus: A Mandamus issued to a lower authority in general public interest asking the officer or the
authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice. [9]

In various countries

Parliamentary democracies

Under the Australian legal system, mandamus is available through section 75(v) of the Australian Constitution. In England and
Wales, mandamus was originally known as a 'writ of mandamus' and more recently as an 'order of mandamus' . This
procedure was renamed by The Civil Procedure (Modification of Supreme Court Act 1981) Order 2004 to become a 'mandatory
order' in India, the sine qua non for mandamus is the existence of a statutory public duty incumbent upon the person or body
against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner entitling him to
claim the enforcement of such public duty. These two preconditions form the foundation for the issue of mandamus. The
primary scope and function of mandamus is to "command" and "execute" rather than to "enquire" and "adjudicate". It cannot
be issued to change the decision of a body so as to suit the petitioner. Obligations which are not of statutory nature cannot be
enforced by mandamus. The writ petition is not maintainable when a remedy provided for under the Code of Civil Procedure is
available. For example, the High Court cannot entertain writ petitions for mandamus to the Government who fails to deposit
and pay in the requisite time an enhanced compensation account as ordered by a lower Court. The petitioners in this case
would be directed to approach the executing Court for appropriate relief.

Supreme Court and High Courts are only empowered to exercise Writ Jurisdiction, under Art. 32 and 226 of Constitution. No
other courts are empowered to issue writ.

United States

In the administrative law context in the United States, the requirement that mandamus can be used only to compel a
ministerial act has largely been abandoned. By statute or by judicial expansion of the writ of mandamus in most of the U.S.
states, acts of administrative agencies are now subject to judicial review for abuse of discretion. Judicial review of agencies of
the United States federal government, for abuse of discretion, is authorized by the U.S. Administrative Procedures Act.

Federal courts

In modern practice, the Court has effectively abolished the issuance of writs of mandamus, although it theoretically retains the
power to issue them.

In the context of mandamus from a United States Court of Appeals to a United States District Court, the Supreme Court has
ruled that the appellate courts have discretion to issue mandamus to control an abuse of discretion by the lower court in
unusual circumstances, where there is a compelling reason not to wait for an appeal from a final judgment. This discretion is
exercised very sparingly. It is exercised with somewhat greater frequency, although still sparingly, in the context of discovery
disputes involving privileged materials, since a district court order erroneously forcing the disclosure of privileged material may
never be remediable through a later appeal.

The authority of the United States district courts to issue mandamus has been expressly abrogated by Rule 81(b) of the Federal
Rules of Civil Procedure, but relief in the nature of mandamus can be had by other remedies provided for in the Rules, where
provided by statute, or by use of the District Court's equitable powers

Certiorari is a legal term in Roman, English, and American law referring to a type of writ seeking judicial review. Certiorari ("to
be more fully informed") is the present passive infinitive of Latin certiorare, ("to show, prove, or ascertain"). A writ of certiorari
currently means an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given
case for review.

Habeas corpus (Pronounced - Hay-b-as Kohr-pus) (Latin: You (shall) have the body[1]) is a legal action, or writ, through which a
person can seek relief from their unlawful detention or that of another person. It protects individuals from harming themselves
or from being harmed by the judicial system. Of English origin, the writ of habeas corpus has historically been an important
instrument for the safeguarding of individual freedom against arbitrary state action.

A writ of habeas corpus ad subjiciendum, also known as "The Great Writ", is a summons with the force of a court order
addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with
proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the
person shall be released from custody. The prisoner, or another person on his behalf (for example, where the prisoner is being
held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the
subject. The British jurist Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but
they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries,
however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions,
comparable provisions exist, but they may not be called "habeas corpus." [2]

The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were
historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the
kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and
certiorari. When the original 13 American Colonies declared independence and became a constitutional republic in which the
people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.

The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority.
The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must
decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in
which the movant must have standing, and bears the burden of proof.

Derivation and form

The right of habeas corpus is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum
et recipiendum. The name derives from the operative words of the writ The word habeas in the writ is not in the indicative
mood ("You have ..."), but in the subjunctive (specifically the volitive subjunctive): "We command that you have ...". The full
name of the writ is often used to distinguish it from similar ancient writs:

 Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused from a different county into a court in
the place where a crime had been committed for purposes of trial, or more literally to return holding the body for
purposes of “deliberation and receipt” of a decision;
 Habeas corpus ad faciendum et recipiendum, also called habeas corpus cum causa, a writ of a superior court to a
custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of
“receiving” the decision of the superior court and of “doing” what it ordered;
 Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the purpose of “prosecuting” him before
the court;
 Habeas corpus ad respondendum, a writ ordering return to allow the prisoner to “answer” to new proceedings before
the court;
 Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution of
a judgment of the issuing court; and
 Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”.

History of habeas corpus in England

The foundations for Habeas Corpus were established by the Magna Carta of 1215. Blackstone cites the first recorded usage of
habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same
effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ. The procedure for the
issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had
restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the
King was a sufficient answer to a petition of habeas corpus.

The wording of the writ of habeas corpus implies that the prisoner is brought to the court for the legality of the imprisonment
to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian,
modern practice in England is for the original application to be followed by a hearing with both parties present to decide the
legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be
released or bailed by order of the court without having to be produced before it. It is also possible for individuals held by the
state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.

India

The Indian judiciary in a catena of cases has effectively resorted to the writ of habeas corpus only to secure release of a person
from illegal detention.

The Indian judiciary has dispensed with the traditional doctrine of locus standi. If a detained person is not in a position to file a
petition, it can be moved on his behalf by any other person. The scope of habeas relief has expanded in recent times by actions
of the Indian judiciary.[6] The habeas writ was used in the Rajan criminal case.

Writ of Quo-warranto is issued with a view to restraining a person from acting in a public office to which it 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.