Right to Constitutional Remedies (Article 32): Meaning, Provisions & Significance

The Right to Constitutional Remedies, enshrined as a fundamental right in the Indian Constitution, is pivotal for justice, accountability, and the protection of individual rights. It empowers citizens to seek redress for the violation of rights, which is crucial for safeguarding liberties in a democracy. This article of Next IAS delves into its key provisions including the writ jurisdiction, shedding light on their vital role in upholding democratic principles and fostering a just society.

Meaning of Constitutional Remedies

Constitutional Remedies refer to the legal mechanisms provided by the constitution of a country to safeguard and enforce the fundamental rights of individuals. These remedies empower citizens to seek relief from the judiciary when their constitutional rights are violated by the state or any other entity. These remedies serve as a crucial means of upholding the rule of law, ensuring accountability, and protecting the rights and liberties of citizens within a democratic society.

Right to Constitutional Remedies in India

The Right to Constitutional Remedies is a Fundamental Right enshrined in the Constitution of India. The detailed provisions related to the Right to Constitutional Remedies contained in Article 32 of the Indian Constitution serve as a bulwark against the infringement of fundamental rights in India. By providing a legal mechanism for enforcement of the fundamental rights of an aggrieved citizen, this right makes the fundamental rights real.

Right to Constitutional Remedies: Provisions under the Indian Constitution

Article 32 of the Indian Constitution of India confers the Right to Constitutional Remedies for the enforcement of the fundamental rights of an aggrieved citizen. It contains the following four provisions in this regard:

• The right to move to the Supreme Court for enforcement of Fundamental Rights is guaranteed.
• The Supreme Court shall have the power to issue directions, orders, or writs for the enforcement of any of the Fundamental Rights.
• The Parliament can empower any other court to issue directions, orders, and writs of all kinds, without prejudicing the same powers of the Supreme Court.
  • Here, the phrase ‘any other court’ does not include the High Court, because Article 226 has already conferred this power on the High Court.
• The right to move to the Supreme Court shall not be suspended, except as otherwise provided for by the Constitution.
  • President can suspend the right to move to any court for the enforcement of Fundamental Rights during a National Emergency.

The following points are to be noted with respect things the Right to Constitutional Remedies:

• This right makes the right to get the Fundamental Rights protected itself a Fundamental Right, thus making the Fundamental Rights real.
• Its significance made Dr. B.R. Ambedkar hail this right as the “heart and soul” of the Constitution.
• This provision makes the Supreme Court the defender and guarantor of Fundamental Rights.
• It vests the Supreme Court with ‘Original’ and ‘Wide’, but ‘Not Exclusive’ powers to enforce Fundamental Rights.
  • Original Powers – An aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal.
  • Wide Powers – The powers of the Supreme Court in this regard are not restricted to issuing orders or directions, but also writs of all kinds.
  • Not Exclusive Powers – The powers of the Supreme Court in this regard are concurrent with that of any other court as empowered by the Parliament for this purpose. e.g. the writ jurisdiction of High Courts under Article 226.
• Only Fundamental Rights, and not any other rights, can be enforced under Article 32.

Supreme Court’s Views On Right to Constitutional Remedies

The Supreme Court has declared that Article 32 of the Indian Constitution is a basic feature of the Constitution. Thus, it cannot be abridged or taken away even by way of a Constitutional Amendment Act.

About the Writs

• In the context of India, Writs refer to formal written orders issued by a court empowered for the purpose, which aimed at enforcing fundamental rights and correcting legal wrongs.
• In India, the power to issue writs is conferred only to the Supreme Court (Article 32) and the High Courts (Article 226).
• It is to be noted that as per the provisions under Article 32, the Parliament can empower any other court to issue writs, without prejudicing the same powers of SC. However, no such provision has been made so far.
• The features of ‘Writs’ in India are borrowed from the Constitution of the UK where they are known as Prerogative Writs.

About the Writ Petitions

A writ petition is a formal written application or request submitted to the Supreme Court or a High Court seeking the issuance of a writ. These petitions are filed by individuals, organizations, or entities to invoke the court’s jurisdiction to protect their fundamental rights, enforce statutory rights, or challenge governmental or administrative actions.

Types of Writs

In India, the Supreme Court, the High Courts or any other courts empowered for the purpose can issue the following five types of writs:

• Habeas Corpus
• Certiorari
• Prohibition
• Mandamus
• Quo Warranto

Habeas Corpus

• The literal meaning of this term is – ‘to have the body of’.
• It is an order issued by the court to a person who has detained another person to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free if the detention was found to be illegal.
  • Thus, this writ is the bulwark of individual liberty against arbitrary detention.
• This writ can be issued against both public authorities and private individuals. However, it is not issued in cases where:
  • detention is lawful,
  • the proceeding is for contempt of a legislature or a court,
  • detention is by a competent court,
  • detention is outside the jurisdiction of the court.

Mandamus

• The literal meaning of this term is – ‘we command’.
• It is a command issued by the court to a public official, asking him to perform his official duties that he has failed or refused to perform.
• It can be issued to a public official, a public body, a corporation, an inferior court, a tribunal, or the government for the same purpose.
• This writ cannot be issued:
  • against a private individual or body,
  • to enforce departmental instruction that does not possess statutory force,
  • when the duty is discretionary in nature,
  • to enforce a contractual obligation,
  • against the President of India, the State Governors, and the Chief Justice of a High Court.

Prohibition

• The literal meaning of this term is – ‘to forbid’.
• It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
• Thus, while the writ of ‘Mandamus’ directs activity, the writ of ‘Prohibition’ directs inactivity.
• The writ of prohibition can be issued only against judicial and quasi-judicial bodies and cannot be issued against administrative authorities, legislative bodies, or private entities.

Certiorari

• The literal meaning of this term is – ‘to be certified’ or ‘to be informed’.
• It is 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 a case.
• This writ is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
  • Thus, while the writ of ‘Prohibition’ is only preventive, the writ of ‘Certiorari’ is both preventive as well as curative.
• It can be issued against judicial, quasi-judicial, as well as administrative authorities, but not available against legislative bodies, private individuals or bodies, etc.

Quo-Warranto

• The literal meaning of this term is – ‘by what authority or warrant’.
• It is issued by the court to inquire into the legality of a claim of a person to a public office.
  • Hence, it prevents illegal usurpation of public office by a person.
• Unlike the other writs, this can be sought by any interested person and not necessarily by the aggrieved person.
• This writ can be issued only in the case of substantial public office of a permanent character created by a statute or by the Constitution. It cannot be issued in the case of ministerial or private offices.

Writ Jurisdiction of Supreme Court and High Court

The writ jurisdiction of the Supreme Court differs from that of the High Courts in three respects:

Parameters	Supreme Court	High Court
Scope	The Supreme Court can issue writs only for the enforcement of Fundamental Rights.	The High Court can issue writs not only for the enforcement of Fundamental Rights but also for any other purposes. Thus, the writ jurisdiction of the High Court is broader than that of the Supreme Court.
Territorial Jurisdiction	The Supreme Court can issue writs against a person or government throughout the territory of India.	The High Court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction. Thus, the territorial jurisdiction of the Supreme Court to issue writs is wider than that of a High Court.
Discretion	A remedy under Article 32 is in itself a Fundamental Right and hence Supreme Court cannot refuse to exercise its writ jurisdiction.	A remedy under Article 226 is discretionary, and hence a High Court may refuse to exercise its writ jurisdiction.

Significance of Writs In the Indian Constitution

Writs, by their very nature, hold immense significance in the context of India. Some of their significance can be seen as follows:

• Protection of Fundamental Rights – These writs provide individuals with a swift and effective means to seek judicial intervention when their rights are infringed upon by the state or any other authority.
• Judicial Review – These writs enable the judiciary to exercise its power of judicial review over the actions of government bodies, administrative authorities, and other institutions. This ensures that governmental actions are lawful, within the scope of their authority, and consistent with constitutional provisions.
• Checks and Balances – These writs allow courts to review and potentially overturn decisions or orders of lower authorities. This contributes to maintaining a system of checks and balances within the system.
• Prevention of Abuse of Power – Writs such as mandamus, prohibition, certiorari, and quo warranto act as preventive measures against the arbitrary exercise of authority by public officials or bodies. They compel adherence to legal procedures, fairness, and transparency in decision-making processes.
• Ensuring Administrative Accountability – Writs hold administrative and judicial bodies accountable for their actions or omissions. They help rectify errors of law or excesses of jurisdiction thereby promoting administrative accountability and integrity.
• Promotion of Justice and Equity – Writs contribute to the promotion of justice and equity by providing individuals with access to timely and effective remedies against injustice, oppression, or unlawful deprivation of rights. They uphold the rule of law and ensure equal protection under the law for all citizens.

In conclusion, the Right to Constitutional Remedies stands as a cornerstone of democracy and justice. By enabling individuals to seek redressal of violations of their fundamental rights, they foster a just and equitable society. Thus, the Right to Constitutional Remedies serves as a bulwark against tyranny and injustice, embodying the essence of a vibrant and inclusive democracy.

Frequently Asked Questions (FAQs)

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