Introduction
Article 32 of the Indian Constitution embodies the Right to Constitutional Remedies, often regarded as the “heart and soul” of the Constitution. This provision serves as a safeguard against the infringement of fundamental rights by the state or any other entity. Article 32 ensures that individuals have access to an effective legal remedy to seek justice and protection against violations of their rights, thereby upholding the rule of law and ensuring the supremacy of the Constitution.
Right to Constitutional Remedies in India
- These contain remedies for the enforcement of the fundamental rights of an aggrieved citizen. The right to get the Fundamental Rights protected is in itself a fundamental right.
- Four Provisions in Article 32:
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- Right to move to the Supreme Court.
- The Supreme Court has the power to issue writs.
- Parliament can empower any other court to issue directions, orders and writs of all kinds.
- Right to move the Supreme Court shall not be suspended except as otherwise provided by the Constitution.
- Basic Feature of the Constitution: The Supreme Court ruled that its power under Article 32 is a Basic feature of the Constitution.
- Sine Qua Non: Violation of Fundamental Rights is the sine qua non for the exercise of the rights conferred by Article 32.
- Suspension of Fundamental Rights: Constitutionally, the President can suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency (Article 359).
- Enforcement of Fundamental Rights: The jurisdiction of the SC is original but not exclusive. It is concurrent with the jurisdiction of the High Court under Art.226.
- SC ruled that where relief through the High Court is available under Article 226, the aggrieved party should first move the High Court.
- Limitations on Article 32 Invocation: Article 32 cannot be invoked to determine the constitutionality of an executive order or legislation unless it directly infringes any of the Fundamental Rights.
- Ambedkar: “It is an article without which this constitution be a nullity”. It’s the very soul of the Constitution and the very heart of it.
WRITS: Types and Scope
- Borrowed from English prerogative writs fountain of justice.
- Parliament, under Art.32, can empower any other court to issue these writs.
- The Supreme Court (Article 32) and High Court (Article 226) can issue writs, namely:
- Differences Between Article 32 and Article 226 Writ Jurisdiction:
- Mandatory Exercise by Supreme Court: Article 32 grants a Fundamental Right to remedy, making it mandatory for the Supreme Court to exercise its writ jurisdiction.
- Conversely, Article 226 provides discretionary power to High Courts for writ jurisdiction.
- Differential Roles: While Article 32 positions the Supreme Court as a defender and guarantor of fundamental rights, Article 226 empowers High Courts with writ jurisdiction as part of their general authority.
| Types of Writs |
Scope |
| Habeas
Corpus |
Meaning: “To have the body of”.
- Order issued by court to the person who has detained another person, to produce the body of the latter before it.
- Bulwark of individual liberty against arbitrary/illegal detention
- Against both – private and public.
- Limitations on Issuance of Writs: Not issued when detention is lawful; Proceedings for contempt of court; Detention is by a competent court; Detention is outside the jurisdiction of court.
|
| Mandamus |
Meaning: “we command” – Direct activity.
- Command is issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.
- Can be Issues: Against any public body, corporation, inferior court, tribunal or government for the same purpose.
- Cannot be Issued: Against private individual or body;
- To enforce departmental instruction that does not possess statutory force;
- When duty is discretionary;
- To enforce contractual obligation;
- Against president or governor;
- Against the Chief Justice of the High Court acting in judicial capacity. [UPSC 2022]
|
| Prohibition |
Meaning: “to forbid”- Directs inactivity
- Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction.
- Can be Issued: only against judicial and quasi-judicial authorities.
- Can Not Be: Against Administrative authorities; Legislative bodies; Private individuals and bodies.
- This writ is preventive.
|
| Certiorari |
Meaning: ‘To be certified’ or ‘to be informed’.
-
- 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 the case.
- It is issued on the grounds of excess of jurisdiction or lack of jurisdiction.
- Preventive and Curative: Unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.
- The prohibition is issued before the final order is passed to stop the further continuance of the proceedings, whereas the certiorari is issued after the final order is passed for quashing the same.
- Can Be Issued: Against Judicial and quasi-judicial authority.
- 1991 Supreme Court Ruled: can be issued against administrative authority also – when it affects the rights of individuals.
- Can Not Issued: Against Legislative bodies and Private individuals or bodies.
|
| Quo
Warranto |
Meaning: “By what authority or warrant”.
- Issued by a court to enquire into the legality of the claim of a person to public office.
- Prevents illegal usurpation of public office by person.
- Can be Issued: Only in case of substantive public office created by a statute or by the Constitution.
- Cannot be issued: Ministerial office and Private office.
- Can be sought by any interested person, not necessarily by an aggrieved person. [UPSC 2022]
|
Comparison between the writ jurisdiction of Supreme Court Vs High Court:
| Supreme Court (SC) |
High Court (HC) |
| Narrower Jurisdiction: Can issue writs only for the enforcement of Fundamental Rights. |
Wider Jurisdiction: can issue writs not only for the enforcement of Fundamental Rights but also for “any other purpose” (Ordinary legal rights). |
| Wider Territorial Limitation: SC can issue writs against a person or government throughout the territory of India. |
Narrower Territorial Limitation: HC can issue writs against a person residing or against a govt or authority located within its territorial jurisdiction only or outside only if, the cause of action arises within its territorial jurisdiction. |
| Mandatory: Remedy under Article 32 is in itself a Fundamental Right, SC may not refuse to exercise its writ jurisdiction. |
Discretionary: Remedy under Article 226 is discretionary, HC may refuse to exercise its writ jurisdiction. |
Conclusion
- The Right to Constitutional Remedies is a cornerstone of democracy, ensuring that citizens have access to an effective legal remedy to enforce their fundamental rights.
- It empowers individuals to directly approach the Supreme Court to seek justice and protection against violations of their rights, thereby upholding the rule of law and ensuring the supremacy of the Constitution.
- Article 32 embodies the principle that the judiciary serves as a guardian of fundamental rights and acts as a check on the powers of the executive and legislature, thus playing a vital role in preserving the democratic fabric of the nation.
March 27, 2024
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