Part III of Indian constitution provides fundamental rights in which Article 32
gives a citizen the rights to approach the supreme court to get resorted any of
the fundamental rights in case of their violation.
Article 32 i.e., "Right to Constitutional Remedies" was made to deal to ensure
that no citizen stays deprived of using their Fundamental Rights and affirms the
right to move to the Supreme Court if Constitutional Right of any citizen has
been "unduly deprived".
During the Constituent Assembly debate, Dr. B.R Ambedkar had said that:
"If I was asked to name any particular article in this Constitution as the most
important- an article without which this Constitution would be a nullity - I
could not refer to any other article except this one. it is the very soul of the
Constitution and the very heart of it and I am glad that the House has realized
Right to constitutional remedies works on the Doctrine "Ubi Jus Ibi Remedium" which means when
there is a right there is a remedy.
It gives the power to the citizens of India to go directly to the Supreme Court of India if they feel that any
of their Fundamental Rights have been violated.
Article 32 empowers the supreme court to issue writs for the protection of fundamental rights in
case of violation because of this authority to issue directions or orders for the execution of any of the
rights conferred by the constitution The Supreme Court is made 'the protector and guarantor of Fundamental Rights'.
What is writ:
A writ is a formal, legal document issued by the executive or judicial body
which commands an individual or entity to do or refrain from doing a particular
Types of writs:Following are the five types of writs issued in India:
- Habeas Corpus:
In the case: ADM Jabalpur v. Shivakant shukla
- - Habeas Corpus is a Latin term which means "produce the body".
- - This is a writ that is issued for releasing an illegally detained person.
- - If the state illegally detains an individual, then such an individual can use the writ of habeas Corpus for the release.
Circumstances when the writ of Habeas Corpus cannot be issued:
- This case is also known as the 'Habeas Corpus case'.
- It is a landmark judgement in which it was held that writ of Habeas Corpus
cannot be suspended even at the time of an emergency.
- The detention is lawful.
- The case is being prosecuted for failure to comply with a legislative or judicial mandate.
- A competent court authorized the detention.
- The jurisdiction of the court on detention is ultra vires.
- Mandamus is a Latin term which means "we command"
- This writ is issued to fulfill contractual obligations.
- Its main purpose is to ensure that the powers or duties are not misused by the administration or the executive and are fulfilled duly.
- However, this writ cannot be issued against the President and the Governor.
In the case: Binny Ltd. & Anr v. V. Sadasivan & Ors (2005)
Grounds for issuing a writ of mandamus:
- It stated that a writ of mandamus is not applicable against any private wrong.
- It can be issued only when any public authority exercises its duty unlawfully or refuses to perform its duty within the ambit of the law.
- misuse of discretionary power;
- exceeding its scope of power;
- ignoring relevant factors;
- deciding on irrelevant factors;
- acting with mala fide intentions.
Writ of Prohibition
In the case: East India Commercial Co. Ltd v. Collector of Customs
- - The writ of prohibition literally means 'to forbid'.
- - Prohibition is used until the lower court has pronounced the judgement.
- - This is a writ directing a lower court to stop doing something which the law prohibits it from doing.
- - It is important to note that writ of prohibition is issued against a judicial body only, and not against a legislative or an administrative body.
-the Supreme Court emphasized on the meaning of writ of prohibition and stated
that it is an order passed by a higher court directing a lower/inferior court to
stop the proceedings on the grounds that the court either does not have a
jurisdiction or the court is exceeding its jurisdiction in deciding the case.
The writ of prohibition can be issued on the following grounds:
- The absence of excess of jurisdiction.
- Unconstitutionality of a statute.
- Infringement of fundamental rights.
- Violation of natural justice.
In the case: Surya Dev Rai v. Ram Chander
Rai & ors
- Writ of Certiorari means to be certified.
- Through this writ, higher courts can command the inferior courts to submit its records for their review.
- In the review, it is checked whether the lower court judgments are illegal or not.
- If the lower court judgments are found to be illegal, then they are quashed.
Lower courts judgements are called illegal when there is:
- The Supreme Court has explained the meaning, ambit, and scope of the writ of Certiorari.
- Also, in this, it was explained that Certiorari is always available against inferior courts and not against equal or higher courts, i.e., it cannot be issued by a High Court against any High Court or benches, much less to the Supreme Court and any of its benches.
In the case:
- Excess of jurisdiction.
- Lack of jurisdiction.
- Jurisdiction is unconstitutional.
- Violation of principle of natural justice.
- Quo Warranto:
- The literal meaning of the writ of Quo Warranto is "by what authority".
- Quo Warranto is a discretionary remedy.
- This writ is invoked in cases of public offices, and it is issued to restrain persons from acting in public office to which he is not entitled.
- It cannot be issued against an Administrator who is appointed by the government to manage Municipal Corporation, after its dissolution.
Jamalpur Arya Samaj v. Dr. D Ram & Ors.
The court issues the Writ of Quo Warranto in the following cases:
- In this case, the Patna High Court held that writ of quo warranto can be issued against a person holding a public office wrongfully only. - It is not applicable in the case of a private office.
- The decision was so given when a petition was filed praying for a writ of quo warranto against the working committee of a private body, Bihar Raj Arya Samaj Pratinidhi Sabha. The Court denied issuing the writ.
- The office needs to be a public office created by a statute;
- A private person should have occupied the office wrongfully;
- The office must have a public duty to perform;
- The person must be using the office.
Article 32 of the Indian Constitution serves as a powerful tool for protecting
and enforcing fundamental rights. It empowers individuals to directly approach
the Supreme Court for redressal when their rights are infringed upon. Over the
years, through various landmark judgments, the Supreme Court has expanded the
scope and interpretation of Article 32, ensuring that it remains a crucial
safeguard for individual liberties.
The provision has played a vital role in promoting social justice, addressing
inequality, and protecting the rights of marginalized sections of society.
However, it is Article 32 which is known as the heart and soul of the
Constitution and for the fact that it is a fundamental right in itself cannot be
Written By: Ankita M. Singh,
Student of BA. LLB, University College of
Law, MLSU, Udaipur.