Fundamental rights were enshrined in the constitution not only to provide people
with protection and equality, but also to ensure justice and fairness. The
declaration of these fundamental rights is meaningless unless they are backed up
by successful enforcement mechanisms. A detailed legislative provision was
inserted into the constitution itself to protect these privileges in order to
transform them into real liberties. The enforceability of these rights was
included as a human right under Article 32, and a nearly identical clause was
included as a constitutional right under Article 226.
Fundamental Rights are enforceable, according to Art. 13, and any statute that
violates a Fundamental Right is invalid. The main provision is Art. 13, which
makes Fundamental Rights justiciable. The position of the judiciary has been
described as that of a "sentinel on the qui vive" by the Supreme Court. The
Supreme Court is empowered to uphold the Fundamental Rights under Article 32.
Under Art. 226 of the Constitution, the High Courts have a parallel power to
uphold the Fundamental Rights.
Right to Constitutional Remedies
Art. 32's right to access to the Supreme Court is a Fundamental Right in and of
itself. Since an individual may go straight to the Supreme Court without having
to go through the dilatory phase of proceeding from the lower to the higher
Court as in other ordinary litigation, Article 32 offers a guaranteed, simple,
and summary remedy for enforcing the Fundamental Rights.
The Indian Constitution's Drafting Chairman referred to Article 32 as the "soul
and heart" of the Constitution because it offered meaningful remedies for
violations of Fundamental Rights, without which the Constitution would be void.
It is preferable to first see the provisions in their literal sense in order to
appreciate them in their true spirit and context.
The following is the text of Article 32 of the constitution:
Article 32. Remedies for enforcement of rights conferred by this Part
- The right to bring an effective action in the Supreme Court to enforce
the rights granted by this Part is assured.
- For the enforcement of any of the rights conferred by this Part, the
Supreme Court may issue instructions, orders, or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, as
- Without exception to the powers bestowed on the Supreme Court by clauses
(1) and (2), Parliament can by statute allow any other court to exercise all
or any of the powers exercisable by the Supreme Court under clauses (1) and
(2) within the local limits of its jurisdiction (2)
- But as otherwise established by this Constitution, the freedom granted
by this provision shall not be suspended.
Art. 32(1) provides a vital safeguard for the security of India's people'
fundamental rights. It guarantees the freedom to petition the Supreme Court in
proper courts for the protection of the Constitution's Fundamental Rights.
“This Court is thus constituted the guardian and guarantor of the Fundamental
Rights,” the Court said in Romesh Thappar, “and it cannot, consistent with the
burden so laid upon it, refuse to entertain applications seeking immunity
against violation of those rights.”
Art. 32(2) empowers the Supreme Court to grant effective orders or directives,
or writs, such as habeas corpus, mandamus, injunction, quo warranto, and
certiorari, for the execution of the petitioner's Fundamental Rights, whichever
is appropriate. It bestows authority on the Court in the broadest sense. “It is
much broader and contains within its matrix authority to issue certain
directives, orders, or writs which might be necessary for protection of the
Fundamental Right in question,” says the court.
Article 32(3) empowers Parliament to allow any other Court, through statute, to
exercise any or any of the powers vested in the Supreme Court by Art. 32 within
the boundaries of its geographical jurisdiction (2). This can be achieved,
though, without jeopardising the Supreme Court's powers under Arts. 32(1) and
32(2). (2). The framers of the constitution recognised that, given its position
and usefulness, and the vast scale of the nation, the Supreme Court alone would
not be able to meet the needs of the people for this reason.
It's possible that they believe these abilities will be needed more and more in
the future. They expressly provided for it in the constitution, and allowed the
parliament to allow every other court to exercise these powers within the local
limits of jurisdiction of that court, anticipating this circumstance.
The right granted by Art. 32 “shall not be suspended except as otherwise
provided for by the Constitution,” according to Art. 32(4).
For example, during an emergency, Art. 359 allows an executive decree to suspend
the ability to petition any court for the protection of fundamental rights.
Even after the 44th amendment to India's constitution, constitutional rights
guaranteed by Articles 21 and 22 cannot be suspended, even during a state of
emergency. Only a particular statutory amendment, not a statute, will suspend
the right granted under this Article.
II. ARTICLE 226
Article 226 as available in the constitution is reproduced below:
*redacted to minimise plagiarism*
Cl. (1) The non-obstante provision in Article 226 shows that the High Court's
authority to issue writs orders and instructions in improper cases is separate
from the Supreme Court's powers under Article 32 of the constitution. In
addition, Article 226 has a much broader reach than Article 32. The application
of these powers is not limited to fundamental rights alone, but also includes
"every other reason."
Cl. (2) of Article 226 limits the jurisdiction of this section to a certain
geographical area. The ability of the High Courts to exercise these powers is
limited to their provincial authority. As a result, in terms of jurisdiction,
the High Courts' functions are reduced.
The High Court may grant a writ to:
- an individual or authority whose place or home is beyond the court's
territorial jurisdiction; or
- where the cause of action occurs entirely or partially within the high
court's territorial jurisdiction.
It is the responsibility of the High Court in which the writ petition is lodged
to determine if any aspect of the cause of action occurred within its
jurisdiction's geographical limits. It is dependent on the circumstances of each
situation. When an order is questioned, a cause of action occurs I where the
order was made as well as (ii) where the order's effects fell on the individual
If the cause of action occurs entirely or partly within the Court's territorial
jurisdiction, the High Court may grant a writ even if the entity or authority is
situated outside its territorial jurisdiction. When an aspect of the cause of
action appears before one of the High Courts, the complainant will have the
option of choosing his forum.
Cl. (3) of Article 226 protects from the negative consequences of ex-parte
provisional directions issued by High Courts under Article 226. The constitution
has a carefully written clause that is largely focused on natural justice
ideals, namely, that no one can be prosecuted without first being heard. No
adverse order can be imposed behind the back of the person who will be harmed by
it. If such an order is made, the other side is entitled to a hearing within two
weeks, as given by this provision.
Clause (4) of Article 226 clarifies that the High Courts' powers under this
Article would not be in conflict with the Supreme Court's powers under Article
32. Despite the fact that the two provisions are similar, the Supreme Court has
the upper hand in this case. After going through the general contours of the
Supreme Court's powers under Article 32 and the High Courts' powers under
Article 226 of the constitution, it becomes clear that the essence of these
powers is almost identical.
The Supreme Court's powers are limited to the protection of fundamental rights
under Article 32 of the constitution, while the High Court may use its powers
for any reason other than the enforcement of fundamental rights. As a result,
the High Court has a broader scope of authority when it comes to the issue of
writ jurisdiction. The Supreme Court, on the other hand, has a broader
geographic scope than the High Courts.
The High Courts, under Art. 226, and the Supreme Court, under Art. 32, have
reciprocal authority over the protection of Fundamental Rights.
It's been debated whether a petitioner trying to impose his Fundamental Rights
should go directly to the Supreme Court under Art. 32, or whether he can first
go to a High Court under Art. 226. The Supreme Court ruled in Romesh Thappar in
1950 that such an applicant could go directly to the Supreme Court without first
going to the High Court. According to the Court,
“Unlike Art. 226, Art. 32 bestows a Fundamental Right on the applicant and
places a duty on the Supreme Court to fulfil when a citizen complains of a
Fundamental Right violation. Art. 32 establishes the Supreme Court as the
“guarantor and guardian of Fundamental Rights” and provides a guaranteed redress
for the protection of the Fundamental Rights.”
Even if this opinion is correct on the merits, it would render Art. 32 obsolete,
since the appellant will go to the High Court first under Art. 226 and then to
the Supreme Court by way of appeal, rather than under Art. 32, because of the
concept of res judicata.
The principle of res judicata states that a decision issued by a court of
competent jurisdiction is final and binding between the parties until it is
overturned or amended by an appeal, amendment, or other legal process. The
Supreme Court has ruled that a High Court's authority in connection with a writ
petition under Art. 226 is almost identical to that of the Supreme Court under
Art. 32. According to the concurrent nature of the writs in both Articles, res
judicata applies. The verdict of the High Court may be appealed to the Supreme
Court, but not by a writ petition.
When a litigant goes to the Supreme Court, the case is ultimately settled by the
Court. If he goes to the High Court, though, the petition is first resolved by a
single judge, followed by an appeal to the division bench, and then, an appeal
to the Supreme Court. In reality, this can cause more time and cost the
complainant more money than filing a writ petition under Art. 32 directly.
As a result, writ petitions may be filed in the Supreme Court under Art. 32
without having to go through the High Court under Art. 226.
Essentials for a writ
The following two provisions must be met before a writ appeal on Article 32 may
be lodged with the Supreme Court.
- There must be a violation of human rights.
- It should be clear of all other remedy options.
The exercising of a right conferred by Art. 32 is predicated on the
non-violation of a fundamental right. Only when a Fundamental Right is infringed
upon can Art. 32 be invoked.
“As the respondent-JUVNL has already formed Consumer Grievance Redressal Forums
at five separate locations for adjudication of electricity disputes, the present
writ petition is not maintainable at this point and ordered to prefer a case
before the Electricity Consumer Grievance Redressal Forum,” the court said
in Jahirul Islam v. Jharkhand Urja Vikas Nigam Limited.
As a result, before filing a writ, the individual should have exhausted all
other options. This is not, however, an outright bar to writ jurisdiction. “The
mere presence of alternative platforms where the aggrieved party may obtain
redress does not impose a legal bar on a High Court to exercise its writ
jurisdiction” the court opined in Maharashtra Chess Association v. Union of
Since Article 32 is a Fundamental Right in and of itself, the lack of an
alternative solution is not a bar to the Supreme Court hearing an appeal for the
protection of a Fundamental Right under Article 32.
When the Court determines that the petitioner's Fundamental Right has been
violated, it is not just its right but indeed its obligation to give
compensation to the petitioner, and the petitioner may not need to prove that he
has no other adequate recourse or that he has tried his legal remedies but has
not received sufficient redress. When a plaintiff establishes that his
Fundamental Right has been violated, the Court has no choice but to deliver an
effective writ in his favour.
Types of writs
The Supreme Court, under Art. 32, and the High Courts, under Art. 226 of the
Constitution, have the power to issue writs in order to impose fundamental
rights against any jurisdiction in the state, at the request of a person whose
right granted under this Article has been violated. There are five different
forms of writs:
Writ of Habeas CorpusThe Latin phrase 'Habeas Corpus' literally means 'to have the body.' This writ
is primarily intended to provide relief from an individual's unlawful detention.
It is a writ of the sense of an order requiring the person who has detained
another to bring the latter before the Court in order to inform the Court of the
reason for his detention and to release him if there is no valid basis for his
The only stipulation is that the offender must have been imprisoned and that the
detention must have been unlawful.
With the case of the prisoner of war and the hostile foreign, it is open to the
worst against the strongest. A petition under Art. 32 would not be valid if the
arrest was carried out by a private individual rather than by or under the
jurisdiction of the state. A habeas corpus petition will be valid under Art. 226
not only when a person was detained by the State, but also when he was detained
by a private citizen (though not under Art. 32, since Art. 226 is accessible not
only for the protection of constitutional rights, but also for "other
The writ of habeas corpus is used to determine the validity or illegality of
imprisonment rather than to convict anyone for a previous offence. The legality
of the arrest will be determined after the court hears the appeal. If a valid
order of detention is issued until the court orders the detainee's release, the
court may deny the release, even if the earlier detention was unconstitutional.
If a detention claim is rejected, it may be submitted again with new facts, and
the concept of res-judicata does not apply in such cases.
The Supreme Court cannot be transferred under Art. 32 if the power to petition
the Supreme Court under Art. 32 was revoked under Art. 32(4) in compliance with
the rules of Art. 359. And if constitutional rights are revoked under Art. 359,
the freedom to petition the High Court under Art. 226 is not, but the High Court
could be petitioned in this case.
The court cannot invalidate the terms of the Act in which incarceration is
requested in a writ of Habeas Corpus. However, under the inherent rights of the
higher courts, the court has the right to know why an individual's liberty was
restricted at any time.
Writ of MandamusMandamus is a Latin term that translates to "We rule." “The writ of mandamus is
of a most extensive remedial nature and is in the nature of a command issuing
from the High Court of Justice, directed to some person, corporation, or
inferior tribunal, requiring him or them to do any particular thing therein
specified which pertains to his or their office and is in the nature of a
command,” according to Halsbury's Laws of England.
The primary goal of this writ is to ensure that the government's apparatus is
functioning properly. An order of mandamus is a command given to an individual,
company, or inferior tribunal, ordering them to do something specific related to
their position and in the nature of public service. The judiciary holds civil
servants accountable for the legality of their public functions and their
conduct when doing them. A writ of mandamus may be given to force a governmental
official to do what is necessary by statute or to go beyond and above what is
required. As Ayyangar J. pointed out,
“The rule of law is enshrined in the Constitution, and Article 226 is designed
to ensure that all authorities of the state, including the government, act in
good faith and within their powers. We believe that where a Court is satisfied
that there has been an abuse or misuse of power and its jurisdiction is invoked,
it is incumbent on the Court to provide justice to the individual.”
Mandamus may also be delivered to force a tribunal to exercise its vested
authority, something it has failed to do. It applies in all cases where a valid
legal right to have a service performed exists but there is no specific legal
solution for implementing that right, as well as where there is no alternative
remedy that is adequate, feasible, and efficient. The Court has complete
authority on whether or not to issue a Mandamus warrant.
The essentials of a writ of mandamus can be stated as follows:
- The plaintiff must have a civil right
- The appellant or respondent must have a legal duty;
- The petitioner must have no other remedy;
- There must have been an appeal for a refusal;
- The writ petition must be submitted in good conscience and bona fide.
In most cases, a writ of mandamus is not given against an authority for the
exercise of discretionary powers. A writ of mandamus may be given to order the
authority to use the discretion correctly if it is not exercised at all, or if
it is used in an unreasonable or malafide way. It is for this reason that giving
up discretion in favour of a scheme followed by a higher authority is not any
less objectionable. With the the complexities of government and the expanded
workload of public bodies, the number of lapses in the exercise of that
authority has increased dramatically.
As the general public has become more conscious of their civil rights and
redress, the number of people seeking a writ of mandamus has grown. Also minor
disputes are brought before the courts in writs to speed up the process.
The Writ of Mandamus now encompasses almost the entire territory of Certiorari.
As a result, there is now a ‘Certiorarified Mandamus' in India as well. When a
court grants a writ of certiorarified mandamus, that ensures the court nullifies
the specific order and orders the authority to act in accordance with the
Writ of Quo Warranto
A writ of Quo Warranto is a writ granted by a superior court to determine by
what jurisdiction an individual seeks to exercise a certain right or hold a
It's a mechanism for limiting presidential action in the hiring of elected
officials. The usurper of public office may be expelled during this period, and
the rightful occupant may be able to take his or her place.
A quo-warranto complainant must show the court that the office in question is a
public office that has been occupied by the usurper without proper authority.
The claimant does not intend to enforce any of his rights, nor does he speak of
non-performance of any obligation owed to him in the proceedings for a writ of
quo Warranto. The Writ in question concerns the respondent's right to hold the
office, and any order issued is an order removing him from that position.
If the court determines that issuing the writ will be pointless, the appeal for
Quo-Warranto could be denied. In the case of Lakhan Pal v. A. N. Ray, a writ of
Quo Warranto filed in the Delhi High Court challenged Mr. Justice A. N. Ray's
role as Chief Justice of India in the suppression of three Senior Judges of the
The writ was denied by the Court because it would have been pointless because
the three Senior Judges who had been superseded had retired, and Justice A. N.
Ray became the Supreme Court's senior-most judge since their retirement, and
could be re-appointed even though it was thought that the Chief Justice could be
appointed on the grounds of seniority. In a quo warranto case, the court must
determine whether the appointment was made in violation of any statute.
In such proceedings, the court must determine if the appointment of such a
person was made in conformity with the law or not. The laws or statutes by which
the nomination was made are not subject to appeal in these proceedings. A writ
of quo warranto may also be requested by someone who is unfamiliar with the
position. The quo-warranto writ is used against the person who holds the office,
not the government. The person who has been suspended from office will not be
A quo-warranto writ is issued to prohibit the exercise of unconstitutional power
from continuing. It cannot, however, reverse the authority's previous acts. It
cannot jeopardise the individuals' legal rights as a result of this procedure.
While a writ of mandamus may be granted on the grounds of mala fides and
arbitrariness, a writ of quo warranto is preferred when the office is complete.
When the office is empty, a mandamus should be given.
Writ of CertiorariCertiorari is Latin for "to certify." A writ of certiorari (cert.) is an order
by an appeals court or an administrative court ordering a lower court to deliver
the case's record for review. In other words, it is a writ granted by the High
Court to subordinate judicial or quasi-judicial bodies ordering them to pass the
documents of a specific case in order to determine if the court has the
authority to issue the order or whether it is contrary to natural justice
standards. A writ of certiorari is a restraining order.
The Supreme Court claimed the following four propositions in the case of Hari
Vishnu Kamath v. Ahmad Ishaque:
- Certiorari will be issued to correct jurisdictional errors
- Certiorari will also be issued where the Court or Tribunal acts
illegally in the exercise of its undoubted jurisdictions, such as when it
decides without giving the parties an opportunity to be heard or when it
violates the principles of natural justice;
- The Court issuing a writ of certiorari will act in a supervisory rather
than appellate capacity. As a result, even though the judgments of fact made
by the inferior Court or Tribunal are incorrect, the Court will not revisit
- A mistake in the ruling or judgement itself can be subject to a writ of
certiorari if there is a direct error visible on the face of the court, such as
whether it is founded on clear misunderstanding or disrespect of the rules. In
other words, it's a patent error that certiorari should fix, not just a bad
Writ of ProhibitionThe purpose of this writ is to prohibit the Courts or inferior tribunals from
exercising authority that they do not have or from extending the scope of their
jurisdiction. In other words, the aim is to keep subordinate or restricted
jurisdiction courts and tribunals within their jurisdictional boundaries.
The writ of prohibition applies not only when there is an excess of authority or
when there is an absence of jurisdiction, but also when there is a violation of
natural justice law.
- Lack of or abundance of jurisdiction– where there is a complete lack of
or absence of jurisdiction
- Natural justice breach– Whether the concept of natural justice is not
followed, or whether it is followed, it is an infringement of those
standards. If the other side has not been presented with the notice and has
not been heard, for example. The prohibition writ will then be issued.
- Unconstitutionality of Statute– A writ of prohibition may be served
against any tribunal or court acting under a rule that is ultra vires or
- Infringement of Fundamental Rights– Where the challenged conduct
infringes on all of the petitioner's fundamental rights, a writ of
prohibition will be issued.
- Procedural blunder on the surface of the record
An order of injunction can also be issued to a lower court or tribunal,
prohibiting that court or tribunal from initiating the trial of a specific case.
So long as there is anything in the litigation to forbid, a writ of prohibition
is sufficient to restrain a tribunal that threatens to presume or claims an
authority not vested in it. The writ of prohibition, like certiorari, can only
be granted if the person, body, or tribunal is entrusted with judicial or
quasi-judicial functions. The order of prohibition, on the other hand, is
imposed where the error of law is obvious on the face of the record, and it is
issued as a matter of right rather than discretion.
If a court operates outside of its jurisdiction but under its defined
boundaries, a writ of prohibition may be filed. A writ of prohibition can be
filed, for example, where a hearing is being held without the court having
authority to do so.
A writ of certiorari may be used in cases where a court has gone outside its
authority in issuing an injunction. For example, if a court issues an injunction
in a case over which it has no jurisdiction, the aggrieved may seek a writ of
Thus, certiorari and prohibition are two separate writs issued at various points
of a judicial trial to review and control the inferior court or tribunal's
exercise of authority while maintaining within the specified limits of that
jurisdiction. In this method, it tests for legal errors.
Orders of prohibition are released before the hearings are completed, while
orders of certiorari are issued after the trials are completed to correct a
legal mistake. However, under such writs, the fairness of the law under which
such cases are filed cannot be contested or determined.
Public Interest Litigation
Litigation brought before a court of law to defend the general public's
interests is known as public interest litigation. PILs brought under Article 226
will be heard by the high court. Persons who were not personally harmed by the
case may file a PIL to bring questions of public concern to the court's
attention. The court has the authority to hear the case for public interest
lawsuits. The term "public interest case" is not specified in any legislation,
but it is construed by the courts.
It is the authority given by the courts to the general public. PIL plays a vital
role in the justice system because it provides a path to justice for those who
are marginalised in society and may not otherwise be aware of their rights.
Furthermore, it offers a mechanism for enforcing diffused rights for which it is
impossible to find an aggrieved party or for which aggrieved parties have no
reason to approach the courts.
The Court ordered the demolition of some limestone quarries in the case of Rural
Litigation and Entitlement Kendra v. State of Uttar Pradesh on the grounds that
they had significant protection and hazard issues. A public interest litigation
(PIL) was filed in the supreme court alleging that large-scale contamination was
caused by limestone quarries, endangering the safety and health of the people
living in the district.
The Court named a committee to inspect certain limestone quarries, and the
committee recommended that certain types of stone quarries be closed due to the
negative effects of mining activities there.
As a result, this PIL strategy aided in bringing to the attention of the Supreme
Court a very critical, urgent, and timely concern topic, namely the preservation
of ecological equilibrium, which is a burning issue.
This PIL policy aided in bringing to light problems such as environmental
security, social welfare, fundamental rights, economic issues, and national
issues such as elections and the Central Bureau of Investigation's powers.
PILs in India have taken on a multidimensional aspect in the possession of the
Supreme Court. The deeply ingrained ill-disposed system has been ignored. With
the advent of legal advocacy, papers, paper records, free vibrant people's
dissensions, and social activity groups bringing to the Court's attention
infringements of major rights were handled as writ petitions, and pay relief was
often permitted by writ jurisdiction.
Article 32 bestows upon the subjects’ extraordinary powers with immediate
effect. Furthermore, as PILs are filed, writs are usually issued against the
state and are summoned against the defendant. The Constitution's Writ
Jurisdictions, on the other hand, have privilege controls and are optional in
nature, but they are unbounded in their breaking points. In either event, the
caution is exercised in accordance with legal guidelines.
As a result, the Judiciary is vested with enormous powers to regulate managerial
operation when it infringes on constitutional rights of the subjects or goes
against the soul of our country, the Constitution of India. It ensures the Rule
of Law, as well as proper checks and balances between the three organs of our
vote-based system. The rationality of writs is closely aligned with our
Constitutional provisions to ensure that nationals' rights are not suffocated by
self-aggrandizing authoritative or judicial operation.