Right to Constitutional Remedies

(Article 32)

Why is it needed?

• If Fundamental Rights are only written on paper, but citizens have no way to enforce them, they would be meaningless, useless, and worthless.
• That’s why Article 32 makes enforcement of FRs itself a Fundamental Right.

👉 This makes FRs real and practical, not just decorative.

Dr. Ambedkar’s View

• Article 32 = “The very soul of the Constitution, the very heart of it.”
• Without it, Constitution would be a nullity (i.e., ineffective).
• SC has ruled: Article 32 is part of the Basic Structure → can’t be removed even by constitutional amendment.

Four Provisions of Article 32

1. Right to move Supreme Court → guaranteed for enforcement of FRs.
2. Power of SC to issue directions, orders, writs → including 5 classic writs:
   • Habeas Corpus → release a person unlawfully detained.
   • Mandamus → command govt. authority to perform its duty.
   • Prohibition → stop lower court from exceeding jurisdiction.
   • Certiorari → transfer case to higher court or quash illegal order.
   • Quo Warranto → check validity of someone’s claim to public office.
3. Parliament may empower other courts to issue writs (but this does not affect SC’s powers).
   • Note: High Courts already have writ powers under Article 226.
4. Right to move SC cannot be suspended → except during National Emergency (Article 359), when President may suspend enforcement of FRs.

Nature of SC’s Role under Article 32

• SC = Defender & Guarantor of Fundamental Rights.
• Powers are:
  • Original → citizen can approach SC directly, not only via appeal.
  • Wide → SC can issue not just orders/directions but writs of all kinds.
• Purpose: Provide a guaranteed, effective, quick, inexpensive remedy.

Limits of Article 32

• Only Fundamental Rights can be enforced under Article 32.
  • Not non-FR constitutional rights, statutory rights, customary rights, etc.
• Violation of FR is a prerequisite (sine qua non).
• SC cannot entertain a case under Article 32 if no FR is directly violated.
  • Example: You cannot challenge a law’s validity unless it actually infringes a Fundamental Right.

Relation with High Courts (Article 226)

• Both SC (Art. 32) and HCs (Art. 226) can enforce FRs.
• So, jurisdiction is original but not exclusive to SC.
• In fact, HCs have wider power under Article 226 → they can enforce both FRs and other legal rights.

👉 SC has said: though citizens may directly come to SC under Art. 32, they should first approach High Court if remedy is available there.

✨ Essence:
Article 32 is the weapon in the hands of citizens to defend their Fundamental Rights against violation. Without it, FRs would just be promises on paper. With it, citizens have the power to hold the State accountable — making democracy real.

Writs

Origin

• Borrowed from English Law, where they were called “Prerogative Writs”.
• Issued originally in the name of the King, the “fountain of justice.”
• Later, English High Courts issued them to protect liberty of citizens.

👉 In India:

• Before 1950 → Only High Courts of Calcutta, Bombay, Madras had writ powers.
• After 1950 → All High Courts got writ power under Article 226; SC got writ power under Article 32.

Supreme Court vs High Court (Writ Jurisdiction)

1. Purpose:
   • SC (Art. 32): Only for enforcement of Fundamental Rights.
   • HC (Art. 226): For Fundamental Rights + “any other purpose” (ordinary legal rights too).
   • 👉 So SC’s writ jurisdiction is narrower, HC’s writ jurisdiction is wider.
2. Territorial reach:
   • SC: Can issue writs anywhere in India.
   • HC: Can issue writs within its state; outside only if cause of action arises within.
3. Nature of remedy:
   • SC (Art. 32): Remedy itself is a Fundamental Right → SC cannot refuse.
   • HC (Art. 226): Remedy is discretionary → HC may refuse if alternate remedy exists.

👉 That’s why Ambedkar called Article 32 the “heart and soul” of the Constitution.

Types of Writs

Now let’s see the 5 writs, their meaning, purpose, and limitations.

1. Habeas Corpus (“to have the body of”)

• Court orders the detaining authority to produce a person in court and justify detention.
• If detention is illegal → person set free.
• Purpose: Safeguard individual liberty against arbitrary detention.
• Can be issued against State or private individuals.

Not issued when:

• Detention lawful,
• For contempt of court/legislature,
• By a competent court,
• Detention outside court’s jurisdiction.

👉 Example: During Emergency (1975–77), Habeas Corpus was suspended → ADM Jabalpur case.

2. Mandamus (“we command”)

• Court orders a public official/body to perform duty they failed/refused to perform.
• Can be issued against: govt., tribunal, corporation, public body.

Not issued against:

• Private individuals,
• Discretionary duties,
• Departmental instructions without statutory backing,
• Contractual obligations,
• President or Governor,
• Chief Justice acting judicially.

👉 Essence: Mandamus = “Do your duty!”

3. Prohibition (“to forbid”)

• Issued by higher court → lower court/tribunal to stop it from exceeding jurisdiction.
• Prevents illegal exercise of power.
• Nature: Preventive (stops action before it happens).

Not issued against:

• Administrative bodies,
• Legislatures,
• Private individuals.

👉 Essence: Prohibition = “Stop! Don’t cross your limits.”

4. Certiorari (“to be certified/informed”)

• Issued by higher court → lower court/tribunal:
  (a) To transfer a case, or
  (b) To quash an order made without jurisdiction or with legal error.
• Nature: Preventive + Curative (unlike prohibition, which is only preventive).

Originally: Only against judicial/quasi-judicial authorities.
Since 1991: Also against administrative authorities affecting rights.

Not issued against: Legislatures, private individuals.

👉 Essence: Certiorari = “We cancel your wrong order.”

5. Quo Warranto (“by what authority?”)

• Court questions the legality of claim of a person to hold a public office.
• Prevents illegal usurpation of public posts.

Conditions:

• Must be a public office of permanent, statutory/constitutional nature.
• Not for private/ministerial offices.

👉 Unique point: Can be sought by any interested person, not only aggrieved person.

Example: If someone is wrongly appointed as a Vice-Chancellor, Quo Warranto can be filed.

✨ Essence:
Writs are the practical tools of liberty. They ensure that Fundamental Rights are not just ideals in the Constitution but enforceable commands against State excesses or illegalities.